Recent Developments Concerning the Exploration
and Exploitation of the Ocean Floor
Allan E. Gotlieb
I.
Introduction
It is truly remarkable that after using the seas for centuries
man is still today without any answers to some of the basic problems
to which this ever-increasing use gives rise. Apart from certain
basic freedoms which are themselves of relatively recent origin,
the seas and the bed of the seas were the subject of very little
concern on the part of the international community, until the present
century. The resources of the seas were for a long time thought
to be inexhaustible and as long as nations were free to roam the
oceans and to harvest their resources, no one showed too much
interest in developing a more detailed body of laws for what
constitutes, notwithstanding, 71 per cent of the earth’s surface.
This basic lack of interest, however, has slowly been replaced
over the last century by a deep concern over the immense value
to man of these vast expanses. There have been two fundamental
factors contributing to this concern. First, it was recognized at
the turn of the century that certain pelagic resources were rapidly
diminishing and that cooperative efforts would have to be under-
taken if they were not disappear altogether. The Fur Seals Treaty
of 19111 between Canada, Japan, the United States and Russia was
the earliest example of an international convention for the conser-
vation of a single resource. The realization that the resources of
the sea were not inexhaustible led to increased national1 and inter-
national efforts in the fields of research, management and conser-
* Mr. Gotlieb was Legal Adviser and Assistant Under-Secretary of State in
the Canadian Department of External Affairs at this time; he has since assumed
the post of Deputy Minister in the newly-established Department of Communi-
cations. This paper was prepared by Mr. Gotlieb and Mr. Paul Lapointe (then a
member of the Legal Division of the Department of External Affairs and now
First Secretary on the Canadian Delegation to the Office of the United Nations
at Geneva). Since the preparation and delivery of this paper the United Nations
General Assembly has adopted a resolution establishing a Permanent Committee
of 42 members (including Canada) on the peaceful uses of the seabed beyond
the limits of national jurisdiction.
‘Treaties and Agreements Affecting Canada in force between His Majesty
and the United States of America, 1814-1925, (Ottawa, 1927), p. 391.
No. 2] EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
261
vation. Canada, for one, is now a party to some twelve international
conventions for the preservation of fisheries resources and it is
expected that during the next few years an even larger number of
such conservation rules or regimes will be established. The second
important factor has been the remarkable progress accomplished
in the technological field. Thanks to the amazing discoveries of
science and its numerous applications to the oceans, the marine
environment is beginning to reveal its secrets and man is exploring
the sea-floor at ever increasing depths.
It is therefore not surprising to see that international jurists
and the international community as a whole are devoting more and
more attention to attempting to develop rules which will permit
the orderly exploration and exploitation of these resources and their
conservation, while preserving the traditional freedoms of the high
seas which to this day remain essential to the peace and stability
of the world.
My purpose is not, however, to examine all these related matters.
Although the eventual exploitation of deep sea resources will clearly
have an effect on the resources of the superjacent waters, my remarks
will be limited for the most part to the question of jurisdiction over
the resources of the sea-bed and particularly its mineral resources.
I shall also restrict my comments to problems of international scope,
thus avoiding the controversial question of what has been called the
“off-shore mineral rights ‘dispute” between the federal and provincial
governments of this country. The rights that accrue to a country
in the eyes of international law are to be enjoyed within that
country in the manner provided for by its constitution.
The first question I intend to examine is the following: What
is the present status of international law with regard to the rights
of states to exploit the resources of the sea-bed ? Depending on the
answer to that first question, we should then be in a position to
consider alternative regimes and prospects for the future.
I. The Law
A. Article I, the 1958 Geneva, CONVENTION ON THE CONTINENTAL
2
SHELF
Until 1958, there was very little law on which to base an
argument in favour of or against the occupation, or a modified version
of that concept, of the bed of the sea. True, there existed a few
examples of traditional activities on the sea bottom and beneath
2 U.N. Doc. A/Conf. 13/38, A/Conf. 1S/L. 55, April 28, 1958.
McGILL LAW JOURNAL
[Vol. 15
it as well. Pearl oysters, chanks, coral and sponges had been exploited
for a long time and undersea mining from the shore was also well
known. Authors made reference to the traditional concepts of res
nullius and res communis in connection with the high seas and
concluded that the sea-bed and the ocean floor and the subsoil
thereof were, or were not, susceptible of occupation. Those who
considered it res nullius (the property of nobody) thought of the
seabed under the high seas as, in principle, subject to national
sovereignty or appropriation. Those who regarded the sea-bed as
res communis (the property of everyone)
thought the opposite.
Fauchille,3 Westlake 4 and Hurst r considered that occupation was not
inconsistent with the universal right to navigate and to fish the
high seas but Gidel 6 and Colombos 7 adopted the contrary view.
In 1945, the now famous Truman Declaration started a trend in
state practice which later resulted in the adoption of the only
relevant international convention, the 1958 Geneva Convention on
the Continental Shelf. There are other rules in existence, national
laws and bilateral or multilateral conventions, which have a bearing
on the subject and to which I shall return briefly later, but the
Geneva Convention is, to a large extent, the embodiment of present
customary international law in this field. What that convention lays
down and whether or not it is satisfactory is what I shall discuss.
The Geneva Convention on the Continental Shelf, which, having
been ratified by close to 40 states, is now in force, recognizes that
coastal states may exercise certain rights in respect of the resources
of their continental shelves. But the definition of the continental
shelf must be clearly examined. Article 1 of the Convention reads:
For the purpose of these articles, the term ‘continental shelf’ is used as
referring (a) to the seabed and subsoil of the submarine areas adjacent to
the coast but outside the area of the territorial sea, to a depth of 200 meters
or, beyond that limit, to where the depth of the superjacent waters admits
of the exploitation of the natural resources of the said areas; (b) to the
seabed and subsoil of similar submarine areas adjacent to the coasts of
islands.
This, definition has four main elements.
3 Paul Fauchille, Trait6 de droit international public, t. I, 2e partie, (Paris,
1925), No. 494, p. 204 et seq.
4John Westlake, International Law, Part I, (Cambridge, 1910), p. 188.
5 Sir Cecil J. B. Hurst, Whose is the Bed of the Sea?, (1023-24), 4 Brit. Y. B.
Int. L. 34, at p. 43.
6 Gilbert Gidel, Le Droit international public de la mer, t. 3, (Paris, 1034),
p. 331.
7John Colombos, The International Law of the Sea, 6th rev. ed., (London,
1967), p. 67.
No. 2] EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
263
First, the continental shelf is made of the seabed and its subsoil.
The superjacent waters are not included. Second, the continental
shelf is adjacent to the coast. Third, the shelf begins where the
territorial sea ends. Fourth, it is limited to a depth of 200 meters
or by the so-called “exploitability test”.
The first difficulty is with the idea, of adjacency. This is a crucial
concept. But what is meant by “adjacent” ? To quote only one defi-
nition, that of the concise Oxford Dictionary, ‘”adjacent” means “lying
near, contiguous to;’. On the Pacific or Atlantic coasts, what is near
and contiguous? 10 miles? 100 miles? or more?
A second problem is raised by the inner limit of the shelf being
fixed in relation to the breadth of the territorial sea. It is well
known that the Convention on the Territorial Sea and the Contiguous
Zone,8 also adopted by the Geneva Conference of 1958, is silent on
the extent of the territorial sea, agreement having proved impossible
at the time and again in 1960. As matters now stand this means
that the shelf begins at 3 miles for Canada and the United States,
at 12 miles for the USSR and at 200 miles for El Salvador.
A third problem –
and the most serious difficulty –
is found in
the double criterion used for the outer limits of the shelf; 200 meters
in depth or as deep as a country can actually exploit the resources.
While the inner limit is based on a horizontal concept, that of distance
from the shore, the outer limit is a vertical one, that of depth. It
was thought by the International Law Commission, as indicated in
its report in 1953,9 that the 200 meter figure represented a sort of
general or world average for the depth at which the break between
shelf and slope normally occurred. Now it appears that the world
average is somewhat less than this. However, the shelf can extend
well beyond the 200 meter depth line –
as in the case of Canada.
Moreover, it appears that the drafters of the Convention thought
that, for a long time to come, it would not be possible to exploit
areas beyond 200 meters. But actual exploitation of petroleum re-
sources has already taken place at depths of 120 meters, serious
evaluation drilling at 400 meters (off the coast of California) and
it appears to be only a question of time and effort before much
greater depths are reached.
If a depth of 200 meters is not a practical concept, then
what of the exploitability test, the second criterion that was proposed
by the International Law Commission in its final draft articles 11 and
8 U.N. Doc. A/Conf. 13/SR, A/Conf. 13/L. 52, April 28, 1958.
9 U.N. Doc. A/CN 4/60, at pp. 1,22-24.
10 U.N. Doe., Official Records of the General Assembly: Eleventh Session,
Supplement No. 9 (A/3159), article 67, at pp. 41-42.
McGILL LAW JOURNAL
[Vol. 15
test, in the Con-
included, side by side with the 200 meter
vention? Does this mean that states will continue to extend their
jurisdiction deeper and further out to sea as technological progress
is realized? It would seem that there is no other possible conclusion,
if one considers “adjacency” to be a very questionable limitation and
one that can but be a source of conflicts.
I quote the Japanese author, Professor Oda 11 –
It may be surmised that the delegations at the United Nations
Conference on the Law of the Sea in 1958 considered that the rules
they were establishing were related only to the geological shelf itself
and that they were not laying down rules for the exploitation of the
deep ocean floor beyond the limits of the shelf or beyond equivalent
limits of the sea-bed where there is no geological shelf, as in the
Persian Gulf or off the coasts of parts of Latin America. But the
exploitability principle set out in the Convention has led some authors
to conclude –
that
(T)he exploitation of submarine resources at any point must always be
reserved to the coastal state which is empowered to claim the area when the
depth of the super-adjacent waters admits of exploitation. It can be inferred
that, under this Convention, all the submarine areas of the world have been
theoretically divided among the coastal states at the deepest trenches. This
is the logical conclusion to be drawn from the provisions approved at the
Geneva Conference.12
I should point out, however, that other scholars hold the opposite
views. Professor Henkin has written that “No government, I believe,
would dare propose this as the interpretation of the Convention;
if one did, the other nations would reject it.” In support of his view
it may be noted that the Report of the ad hoe Committe on the
Seabed,13 which met in 1968, states quite categorically that:
It was generally agreed that there is an area of the sea-bed and ocean
floor which is not subject to national jurisdiction and that this fact, which
seemed obvious, needed emphasizing because of the broad interpretation of
which article 1 of the Convention on the Continental Shelf was susceptible.
It was pointed out that none of the members in the Working Group had
suggested that either international law or article 1 of the Continental Shelf
Convention authorizes the extension of limits for an indefinite distance into
the deep ocean floor and this was considered possibly a valuable finding.14
In analyzing the factors underlying these difficulties in de-
termining the limits of national jurisdiction, it should be recognized
that the Convention laid down a legal definition which, in fact, took
very littJe account of the geographical-geophysical realities of the
11 Shigeru Oda, International Control of Sea Resources, (Leyden, 1963).
12 Ibid., at p. 150.
‘s Report of the ad hoc Committee to Study the Peaceful Uses of the Sea-Bed
and the Ocean beyond the Limits of National Jurisdiction, U.N. Doe. A/7230.
14Ibid., at p. 48, para. 40.
No. 2] EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
265
oceanic submerged areas. The Economic and Technical Working
Group of the United Nations ad hoc Committee on the Peaceful Uses
of the Seabed and Ocean Floor 15 –
a Committe which was established
by the United Nations General Assembly in 1967 –
arrived at a
number of definitions of a strictly geological and topographic charac-
ter which point to the deficiencies of the legal definition of the
Convention. The following are a few examples:
a) Continental Shelf: The area of the ocean floor between the
mean low water line and that change in the inclination of the floor,
from about one-eighth of one degree to more than three degrees, that
marks the beginning of the continental slope which occurs at various
depths, usually between 130 and 200 meters, but exceptionally as
shallow as 50 meters or as deep as 500 meters. The width of the
shelf ranges from less than one mile up to 800 miles. When the
increase in slope is very gradual, the point of maximum rate of
change of slope is considered to be the edge of the shelf.16
b) Continental Slope: The area of the ocean floor extending
from the outer edge of the continental shelf to the abyssal ocean
floor, usually from 10 to 20 miles wide. The inclination of the slope
varies widely from as little as three degrees to over forty-five degrees.
Geologically it marks the rather abrupt transition from continental
or sialic crust to oceanic or simatic crust. 17
c) Continental Rise: Apron of clastic sediments, wherever
deep sea trenches are absent, that slopes gently oceanward from
the base of the continental slope, usually in 2,000 to 5,000 meters of
water.’ 8
When these are taken together with the definitions of the abyssal
depths, sea-mounts, banks and mid-ocean ridges, it can clearly be
seen that, on the one hand, there exists a submerged region of the
earth’s crust which is a sort of natural underwater extension of the
continents (shelf and slope and part of the rise) and, on the other,
a second submerged region which is very different from continental
formations. The first has been called “continental margin” and the
second “oceanic basin”. What I have just described in lay terms
has thus been defined in more technical terms.
Continental margin: That region of the earth’s crust where the
continental sialic rocks are covered by the sea.’ 9
15 Supra, n. 13, at p. 21 et seq.
‘0 Ibid., at p. 22.
17 Id.
181 d.
19 Ibid., at p. 23.
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Oceanic basin: That region of the earth’s crust covered by water
where the sialic rocks are thin or completely absent and underlain
by simatic rocks.20
It was the Canadian contention in the United Nations General
Assembly debates in 1967 that the rules or criterion used to limit
coastal jurisdiction should be based, at least in part, on these
fundamental concepts. It seems to us that the geographic reality of
the continental margin provides a helpful basis upon which to clarify
existing international law and develop a firm criterion –
although
not necessarily an exclusive one –
for determining the limits of
national jurisdiction over the continental shelf. I should point out
that even prior to the First United Nations Conference on the Law
of the Sea in 1958, the Canadian view, as expressed in an official
publication, was that:
(P) recision would not be forfeit.., if the boundary of the shelf were its
actual edge. Where the actual edge might be ill-defined or where there is no
shelf in a geographical sense, the boundary might be set at such a depth as
might satisfy foreseeable practical prospects of exploitation of the natural
resources of the sea-bed adjacent to a particular state.21
B. Other Articles of the CONVENTION
Bearing in mind this analysis of article 1, a further insight into
the underlying principles of the Convention can be gained from
articles 2, 3, 4, 5 and 7 of the Convention. This will assist us in
determining the precise nature of the rights enjoyed by coastal states
over the rather imprecise area I have just described.
Article 2 states that “the coastal state exercises over the
continental shelf sovereign rights” and not sovereignty, “for the
purpose of exploring it and exploiting its natural resources” and,
these are my words, for no other purpose. If one continues the reading
of these articles, it will be seen that these “sovereign rights” are
exclusive, in the sense that no other state may undertake these
activities without the express consent of the coastal state; that these
rights do not depend on occupation or any express proclamation;
that the rights to be enjoyed do not affect the legal status of the
superjacent waters as high seas or that of the airspace above these
waters; that the enjoyment of these rights may not impede the
laying or maintenance of submarine cables or pipelines on the shelf;
and finally that exploitation must not result in any unjustifiable
interference with navigation, fishing, conservation of the living
20 Id.
21 (,1959), 10 External Affairs 21, rep. in Castel, International Law, (Toronto,
1965), at p. 362.
No. 21 EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
267
resources even though installations, safety zones and other devices
are permitted in order to allow proper exploration and exploitation.
What would seem to emerge from this list of rights is that they
are limited in nature and that they are not to interfere with any
right previously enjoyed by other states, whether over the waters
themselves or on the very bottom, as in the case of pipelines and
cables.
although the argument is strained –
One of the major difficulties encountered in interpreting the
Convention has been the determination of the precise nature of the
rights which are said to be sovereign and exclusive but are not
equivalent to what traditionally arose from effective occupation,
that is, ownership. There have been differences of view over the
interpretation to be given to those types of living organisms belong-
ing to sedentary species which are considered to be, for the purpose
of exploitation, a part of the continental shelf. It has also been argued
that one of the possible
–
effects of the concept of limited sovereign rights is that jurisdiction
over the shelf does not extend to the freedom to install structures
or devices which are unrelated to the “exploration and exploitation
of the natural resources” of the shelf, for example, military instal-
lations. But it is already well known that continental shelves are
being used for that purpose, even though the nature and extent of
these activities are well-guarded secrets. It can easily be seen that
states are not likely to ignore their security requirements simply
because the Convention is silent or unclear on the subject.
The exploitation of the resources of the sea-bed gives rise to
another difficulty. There is bound to be a very large increase of
activities on the shelf in the next few decades. Unless the law is
made clearer, there is a danger that the economic benefits derived
from the shelf resources will be of such a scope as to contribute
substantially to the erosion of the legal basis for the free use of
the high seas. When oil platforms are so numerous in one area as
to impede normal navigation and fishing, the tendency may very
well be to reroute ships and displace fishermen. In the Gulf of Mexico,
ways and means have so far been found to develop conflicting
activities in harmony. But the question is: Will this be possible or
economically feasible everywhere? Is it too pessimistic a view to
forecast that sooner or later coastal states which at present enjoy
only limited sovereign rights over their continental shelves may end
up, through some sort of prescriptive use, by claiming not only the
ownership of the sea-bed and subsoil but full sovereignty over the
superjacent waters as well, as is now the case for the territorial sea?
Already, a number of Latin American States have adopted this
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position. In view of such developments in state practice, it is some-
what paradoxical to note that those provisions of the Convention –
they are found in Article 5 – which allow the coastal state to
erect “safety zones” around the installations and devices used for
exploring or exploiting the continental shelf, do not appear to be
adequate, from the legal standpoint, to allow coastal states to
exercise that degree of jurisdiction and control in the area which
is necessary to protect their sovereign rights over exploitation of the
resources of the shelf.
In surveying the underlying principles of the Geneva Convention,
reference must also be made to article 6 which provides for the
delimitation of the continental shelf as between two states whose
coasts are adjacent to or opposite each other. These rules are im-
portant not only from a bilateral point of view, for example, as
between Canada and France and Canada and the United States, but
also because they represent the only firm limitation to coastal states’
jurisdiction.
Article 6 provides that in the absence of agreement and unless
another boundary is justified by special circumstances, the boundary
between the shelves opposite or adjacent to two states is to be
determined by application of the principle of the median or equi-
distance line. If, therefore, the exploitability test of Article 1 is not
sufficient to limit the jurisdiction of the coastal state, eventually
it is the equidistance line drawn somewhere in the midst of the
ocean which so limits that jurisdiction. Charts have been published
showing the result of such a concept. Such a division of the oceans
would not only be inequitable; it would certainly also give rise to
a new type of territorial conflict as well as to a colonialistic race
to capture new resources in distant regions.
In brief, Article 6 is a confusing and, it is submitted, poorly
drafted article which is already the subject of an international
dispute before the International Court of Justice.2 2 I will discuss
some of the difficulties arising from this article when I later turn
to bilateral issues relating to the sea-bed which concern Canada.
The conclusion can be drawn from this discussion that the Geneva
Convention on the Continental Shelf is not fully satisfactory. It is,
however, the best that could be developed by legal experts working
in the International Law Commission, who were severely handicapped
by a lack of international practice to guide them and by the limited
22 North Sea Continental Shelf Dispute, two disputes involving Danemark and
the Federal Republic of Germany on the one hand and the Netherlands and the
Federal Republic of Germany, on the other; see infra, p. 277.
No. 2] EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
269
state of technical information available to them. The Convention
remains the only international instrument applicable on a world-wide
scalle. There is no question but that, weaknesses notwithstanding, it
embodies a large number of essential rules which, in any event, will
have to remain an integral part of whatever new law is developed.
For reasons which I will discuss later, it is most difficult to offer
workable alternatives and the Convention must be regarded as a
remarkable achievement even if it turns out to be regarded, some
years hence, as only a good first try.
C. Related Legal Aspects
Throughout the previous discussion of the Geneva Convention,
I have referred to a number of legal rights or rules, traditional or
otherwise, which have an important bearing on the question of
jurisdiction over sea-bed resources. Before discussing present trends,
I wish to give a brief enumeration of these rules because it would
be futile to elaborate new constructions without having these in mind.
There are first of all the traditional freedoms of the high seas:
1)
2)
3)
4)
freedom of navigation;
freedom of fishing;
freedom to lay submarine cables and pipelines; and
freedom to fly over the high seas.
Another freedom which has perhaps a lesser status, is the freedom
to undertake scientific research on the high seas.
After enumerating
the four freedoms mentioned previously,
Article 2 of the 1958 Geneva Convention on the High Seas 23 provides
an additional rule:
These freedoms, and others which are recognized by the general principles
of international law, shall be exercized by all states with reasonable regard
to the interests of other states in their exercize of the freedom of the
high seas.
This is a most important concept to retain and apply.
There is also the question of the prevention of pollution and
other hazardous and harmful effects from any activity on the high
seas. At the current session of the General Assembly, the Icelandic
Government, along with Canada and a number of other states, has
proposed that immediate steps be taken by the United Nations to
study and deal with the threat to the marine environment and its
living resources as a result of the exploration and exploitation of
the sea-bed.
23 U.N. Doc. A/Conf. 131/53 and Corr. 1.
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A more political aspect but one with important legal consequences
is that of the use of the sea-bed and ocean floor for peaceful purposes
only. This of course refers to disarmament and arms control measures.
One of the main problems to be faced here is how far the Great
Powers are willing to go in setting limitations on the military uses
of the sea-bed which are not imposed on the super-adjacent high
seas. It is likely that the answer to this question will only be known
in the Eighteen-Nation Disarmament
after patient negotiations
Conference in Geneva.
There is also the concept embodied in Article 6 of the 1958
Fisheries Convention 24 which recognizes that : “A coastal state has a
special interest in the maintenance of the productivity of the living
resources in any area of the high seas adjacent to its territorial sea”.
This special interest should also be recognized in respect of al
resources and all activities in areas adjacent to a state’s coasts. Fish
do not respect territorial sea limits, nor do mineral veins or oil pools.
From a security point of view, this special interest should be even
more evident. In fact, the concepts underlying the Convention on the
Continental Shelf, and in particular the concepts of adjacency, seem
to be rooted in the notion of the special interests of the coastal state.
III. Alternative Regimes
There would now appear to be two more or less immediate
requirements. In the first instance, the character of the definition
of the continental shelf in the 1958 Convention has led the majority
of writers and many states to call for a new definition of the limits
of national jurisdiction. Second, once a new limit is established, the
general feeling is that the time will have come to establish beyond
those limits a new legal system, new legal rules which would establish
that the resources of the deep ocean floor about to be made available
to mankind through the rapid progress of technology can be developed
and used for the benefit of mankind as a whole.
These two requirements are the conclusions which have been
tentatively reached by a large number of countries after consideration
of all theoretical alternatives. I shall attempt to review these al-
ternatives in summarized fashion:
1)
it would be theoretically possible to achieve a division of
the sea-bed and ocean floor by agreement amongst all nations,
coastal or landlocked. The difficulties of such a course of action should
be obvious. It is simply not believed possible that such a consensus
24 U.N. Doe. A/Conf. 13/38, A/Conf. 1S/L. 54, April 28, 1958.
No. 23 EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
271
could be reached because of the innumerable technical problems which
would arise and because of the political conflicts which would auto-
matically come to the surface.
2) coastal states could extend their jurisdiction over the subsoil
underlying the oceans as far as technology progressively permits in
accorda.nce with the 1958 Convention up to the median line. As I
have already indicated, it is the view of many that this is precisely
the regime which the Convention creates. There seems little doubt
that the result would be confrontations in the middle of the oceans
leading to major sources of conflicts. Such a division of the oceans
among coastal states would also result in excessively large portions
of the sea-bed accruing to a single country, Portugal being an
obvious example in the Atlantic; and the United States another in
the Pacific, where their possession of certain tiny islands would
influence the drawing of the median line in a very inequitable manner.
3) a further theoretical possibility would be to consider that
beyond defined limits of national jurisdiction the sea-bed and ocean
floor are res nullius and susceptible of occupation. This would obvious-
ly favour the technically-developed countries to the detriment of
the less-developed ones. A new era of colonization, this time at the
bottom of the sea, is practically unthinkable in political terms today.
4) a fourth theoretical possibility is to consider that beyond
defined limits of national jurisdiction, governing principles should
be adopted comparable to those contained in the two principal instru-
ments dealing with outer space. One is called: “Declaration of Legal
principles governing the activities of states in the exploration and
use of outer space”. The other is: “The treaty of principles governing
the activities of states in the exploration and use of outer space,
including the moon and other celestial bodies”. Such an approach
would involve freedom of exploration, scientific investigation and
exploitation, subject to certain general rules but without national
appropriation by claims of sovereignty, by use, occupation or other
means. Suffice it to say that some of the principles used for outer
space might with certain advantage be retained. There are also
similar concepts embodied in the treaty on Antarctica. However,
it would seem to me that the very proximity of the oceans, as opposed
to that of celestial bodies, calls for the elaboration of a more complex
and detailed set of rules. Man is more likely to progress faster on
this planet than he will on others.
5) finally, some form of international control is possible, and
perhaps this is the most attractive theory. It is certainly the one
which has been most widely discussed and which might well come
McGILL LAW JOURNAL
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in time to be adopted. It is of course susceptible of innumerable varia-
tions; but more on that later.
IV. Present Situation and Prospects for the Future
The problem of jurisdiction over sea-bed resources has been the
subject of numerous meetings of international jurists and technicians
over the last two or three years and has been treated in a very
large number of publications, notably in the United States. The
contributions of these groups and of these individuals have been
exceedingly helpful to those of us who are entrusted with the task
of advising our respective governments on these issues. The most
important development to take place in the course of the last year,
however, was undoubtedly the introduction by the Delegation of
Malta, of an item on the agenda of the 1967 General Assembly
(XXII) calling for the “Examination of the question of the reser-
vation exclusively for peaceful purposes of the sea-bed and the ocean
floor, and the subsoil thereof, underlying the high seas beyond the
limits of present national jurisdiction, and the use of their resources
in the interest of mankind”. This resulted in a Resolution by the
General Assembly in December 1967 establishing an ad hoe committee
of 35 members, including Canada, for the purpose of preparing a
study which would include (and it will be noted that this was a
relatively limited mandate): 25
a) a survey of the past and present activities of the United
Nations, the specialized agencies, the International Atomic Energy
Agency and other intergovernmental bodies with regard to the sea-bed
international agreements
and the ocean floor, and of existing
concerning these areas;
b) an account of the scientific, technical, economic, legal and
other aspects of this item; and
c) an indication regarding practical means to promote inter-
national cooperation in the exploration, conservation and use of the
sea-bed and the ocean floor, and the subsoil thereof, as contemplated
in the title of the item, and of their resources.
The ad hoc committe was not asked to make recommendations:
it was simply to make a survey of existing activities and agreements,
to provide an account of all aspects of the problem and to give an
indication regarding practical means to promote international co-
operation in this field. Given these limitations, it can be said with
certainty that the ad hoc committee, whose life has expired with
25 Resolution 2340 (XXII) of December 18, 1967.
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273
the submission of its report, has worked well and has accomplished
an extremely important task in spite of the difficulties it had to face.
The report of the Technical and Economic Working Group of the
Committee 26 was perhaps its most notable achievement. It gives a
sober view of the geographical and economic realities of the present
situation and of the state of man’s knowledge of the oceans and
its floor, and lawyers and politicians would be well advised to digest
its contents. The report of the Legal Working Group 27 was, as expect-
ed, the most -difficult to prepare. There are in point of fact very few
principles in that report which were endorsed by all members. It is
mostly a summary of the views held by the 35 members on all
legal aspects of the problem. This is certainly not surprising when
one considers that the adoption of any legal rule at this time
might have irretrievably tied the hands of those supporting it. Canada,
for one, was not prepared to go beyond the enunciation of certain
general principles which are by themselves, as I will indicate later,
of a far-reaching nature. The report of the ad hoc committee
itself is also a compendium of views and it includes very little in
the form of a consensus.
The First Committee of the General Assembly is at present
studying this report and considering ways and means to pursue
the task undertaken by the ad hoc committee. A resolution has
already been introduced, and Canada is a co-sponsor, calling for the
establishment of a new permanent committee with a somewhat
modified mandate.
What are the main outstanding problems to be faced at this
juncture? What are the basic issues facing the international com-
munity?
Perhaps the most pressing one is the re-definition of those areas
which are to remain under national jurisdiction, a matter now
covered by the Geneva Convention. Many new definitions have been
proposed, starting with the depth criterion, 200 meters, 550 meters
which certain authors claim to be closer to the geographical nature
of the continental shelf, 1,000 meters, etc… Others have suggested
a formula based on distance from the shore: this would probably
please the eight Latin American countries now claiming 200 miles.
Others yet have proposed a mixed depth-distance formula, for
instance, 200 meters and/or 50 miles whichever is more beneficial
to the coastal state.
26Supra, n. 15.
27 Supra, n. 13, at p. 42.
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The difficulty with these definitions is that they are not sus-
ceptible of universal application. While any one formula might b
considered as satisfactory for a particular state or group of states,
other states could not possibly rest satisfied with them. So far as
Canada is concerned, a cursory look at the Canadian shelf, and I
am referring here to the geological-geographical entity, gives a clear
indication of the scope of the problem. The Grand Banks of New-
foundland, which are undoubtedly continental shelf and slope, extend
for 300 miles and far exceed the depths envisaged. In many places,
the foot of the slope would be found at around 3,500 meters. If one
considers that the Flemish Cap is but a natural appendix of our shelf,
the distance becomes 400 miles. Is Canada to accept a severe
reduction of her continental margin and simply ignore the advantages
which nature has bestowed upon her? Our continental margin has
been roughly estimated to be equal in extent to 40 per cent of our
land territory. We could probably afford to be generous but the
question is how generous and by virtue of what criterion. Obviously
the future economic progress of Canada is involved and so may be
other interests such as security and fishing.
The Canadian delegation on the ad hoc committee has never-
theless taken the position that, irrespective of what may be permis-
sible under existing customary international law –
and, as I said
before, it has been argued that, under existing international law,
a coastal state can legally extend its jurisdiction as far as it can
exploit subject only to the median line –
the limits of national
jurisdiction need to be clarified and related to more precise and
firmer legal criteria. Canada is not about to claim the large chunk
of ocean floor beyond the geographical shelf. However, although we
have done some preliminary studies of the Canadian shelf, we are
not yet in a position to lay down any rule as we do not yet know,
at least in any precise way, what the over-all picture may be and
what type of criteria would meet the widely different geographical
circumstances of the rest of the world.
A second most important decision to reach is related to the legal
regime which will prevail beyond the new limits of national juris-
diction, once these are established. Here again many theories have
been advanced. I have already indicated that the one which at present
seems to be the most attractive to many states, particularly the
smaller ones, is the idea of international control. But such control
poses both qualitative and quantitative problems. How detailed should
such a new system be? Should it attempt to cover all exploration and
exploitation activities in their minutest details, in a way similar to
existing national legislation? Or should it just lay down some general
No. 2] EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
275
rules of the road? It could also be simple registration machinery
whereby the states undertaking activities on the sea-bed would simply
be required to notify some international agency of their intentions
and generally keep the world community informed. Or again it
could imply the establishment of a new international agency with
adequate powers to lease areas of the sea-bed, control all activities
therein, collect fees, royalties and other revenues and hold a percent-
age of these for the developing countries. Could it also arbitrate
as between the competing states?
it is to prove beneficial
It is much too early for anyone to take a definitive stand on
these theoretical questions. The few “draft treaties” we have been
able to study are far too idealistic and too far removed from the
political, technological and economic facts of life to be more than
interesting and perhaps useful background documentation. One should
to
not forget that any new system, if
mankind as a whole, will have to be a practical, workable propo-
sition not only from the point of view of world politics but
also from that of the private entrepreneurs who will undertake
such activities on behalf of states. The huge amounts of capital
expenditures required for the development of the presumably vast
resources of the ocean floor will in all likelihood continue to originate
with private industry. Without an adequate guarantee of a reasonable
return, these funds will be diverted to other more profitable under-
takings. I am not saying that the new regime should be fitted to
all of the requirements of the mining and petroleum industries;
I am only saying that they are the ones who will do the work and
the new regime has to take this into account.
The basic problem is, therefore, to reconcile the more idealistic,
humanitarian outlook of some, with the more pragmatic, mercantile
approach of others. One cannot legislate in a vacuum.
At the last session of the ad hoc committee in Rio de Janeiro, a
measure of consensus was reached on a series of principles which
might serve as useful guidelines pending the elaborations of the new
rules I have discussed. This list reads as follows:
1) There is an area of the sea-bed and ocean floor and the subsoil
thereof, underlying the high seas, which lies beyond the limits of
national jurisdiction (hereinafter described as “this area”) ;
2) Taking into account relevant dispositions of international law,
there should be agreement on a precise boundary for this area;
3) There should be agreement, as soon as practicable, on an
international regime governing the exploitation of resources of this
area;
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4) No state may claim or exercise sovereign rights over any
part of this area, and no part of it is subject to national appropriation
by claim of sovereignty, by use or occupation, or by any other means;
5) Exploration and use of this area shall be carried on for the
benefit and in the interests of all mankind, taking into account the
special needs of the developing countries;
6) This area shall be reserved exclusively for peaceful purposes;
7) Activities in this area shall be conducted in accordance with
international law, including the Charter of the United Nations.
Activities in this area shall not infringe upon the freedoms of the
high..seas.28
These few principles constitute in the Canadian Government’s
view a sound basis for the future development of international law
in this context. It is interesting to observe, however, that neither
these rules nor any other guiding principles seem likely to be approved
at the current session of the General Assembly. A variety of draft
resolutions containing guidelines were tabled, particularly by the
Latin-American countries. There were also several proposals, sub-
mitted by Liberia, Malta, Cyprus, Tanzania and others, for a “freeze”
in making claims beyond the limits of sea-bed jurisdiction as well as
proposals of Kuwait, Venezuela and others for a study of the creation
of new international machinery for the exploration and exploitation
of the sea-bed. As at the present time none of these propositions have
been adopted nor ‘do they seem likely to be voted upon. The major
difficulty is that, on the one hand, many coastal states are anxious
to assert their interest in the matter by tabling formal proposals,
often of a vague or conflicting character, and, on the other hand,
many of the larger states are just not ready to take a position on
these or any other concepts at the present time and until more is
known about the whole problem and major international efforts
made to investigate or clarify the various possibilities. Moreover,
lurking in the wings of the halls where the discussions take place
is the shadow of supranationalism, a shadow to which the Soviet
Union and its supporters call attention and which obviously makes
them uneasy and anxious to proceed very cautiously.
There are naturally other important issues which will have to
be considered by the international community in the not too distant
future. One cannot set up a new rule of law for the sea-bed and
ocean floor without giving due consideration to its effects on the
high seas in matters such as navigation, fishing, pollution, etc. There
28 Supra, n. 18, at p. 1.9.
No. 2] EXPLORATION AND EXPLOITATION OF OCEAN FLOOR
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is also the secondary problem of the coordination of all research and
study in this field. This involves the participation of the Fisheries
Committees of FAO, WMO, the Intregovernmental Oceanographic
Commission of UNESCO, the IAEA and others as well. There is no
doubt that the United Nations is making a major start in this
direction. The Icelandic proposal on conservation and pollution and
the United States’ proposal of a Decade of Ocean Development will,
if adopted, constitute important developments in the direction of a
greater coordination of international efforts to preserve man’s ocean
environment and its living resources.
V. Bilateral Problems
Before I conclude, I would like to draw your attention to a
series of bilateral questions which have some bearing on the
development of international law, but are more particularly of direct
concern to Canada and to the United States as well.
There is now before the International Court of Justice in The
Hague a case involving the demarcation of national limits of juris-
diction over a part of the North Sea Continental Shelf between the
Federal Republic of Germany on the one hand ‘and Denmark and
The Netherlands on the other. The question that has been asked
of the Court is: What is the applicable law?
This involves basically an interpretation of Article 6 of the
Geneva Convention on the Continental Shelf. Germany has been
arguing, first, that the line of equidistance was not a general rule
of international law and that any delimitation should be based on
equity. Lately, the Germans have added that in any event there exist
“special circumstances” in the case at hand, and that a boundary
line other than one based on the equidistance line is justified. The
Dutch and the Danes have been relying mostly on the line of equi-
distance.
The importance of the impending decision of the Court for
Canada can be seen in the fact that Canada is already engaged in
negotiations with France in respect of the delimitation of the re-
spective national jurisdictions over the continental shelf adjacent
to the Islands of St. Pierre and Miquelon and that negotiations
should soon be initiated with the United States in respect of those
off-shore areas where our jurisdictions meet. Although I am not
at liberty to discuss the substance of these negotiations,
is
possible that the Court’s decision will have an impact on them, irre-
spective of the fact that Canada has not yet ratified the 1958
Convention. If Canada is any example, it would seem that the ap-
it
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plication of the principles involved in the Convention on the Conti-
nental Shelf is giving or is likely to give rise to many bilateral and
multilateral disputes as to how to draw the dividing line between
competing jurisdictions to the continental shelf of adjacent coastal
states. When the apparently simple rules of the article are applied
to the extremely varied geographical circumstances in which con-
flicting claims to a portion of the continental shelf can arise, it
becomes quickly apparent that the principles of equitable apportion-
ment which appear to underlie the article seem to be imperfectly
formulated. These imperfections become all the more apparent if
attempts are made to apply the article to situations where islands
lie adjacent to a land mass of another country. There seems little
question that the drafters of the International Law Commission’s
articles and of the Convention itself could not have been fully
cognizant of the extraordinary complexities as well as the unusual
and, it is submitted, inequitable results that could arise from the
application of the equidistance principle.
Conclusion
I have attempted to outline some of the basic issues now confront-
ing the international community with respect to the exploration and
exploitation of the resources of the sea-bed and the ocean floor.
I hope that I have demonstrated the importance which the Canadian
Government attaches to the question of jurisdiction over that area
of the earth’s surface as well as of the extreme complexity of the
difficulties to be resolved. We firmly believe that any approach
to these difficulties and any attempt at elaborating solutions must
be made cautiously and in a realistic manner. It is not being negative
to be prudent. It is not to be without idealism or understanding
of the needs of the developing countries to proceed in such a way
as to ensure the orderly development of sea-bed resources on the
basis of sound economic and technical facts. We must move ahead
as rapidly as possible but we must not substitute for what now
exists anything which could prove as detrimental to all as the much
feared free-for-all on the oceans.
